Reminder – Preparing for the Federal Motor Carrier Safety Administration Drug and Alcohol Clearinghouse (U.S. Department of Transportation sent this bulletin at 12/17/2019 10:00 AM EST)
FMCSA News Statement: https://www.fmcsa.dot.gov/newsroom/fmcsa-opens-registration-commercial-driver%E2%80%99s-license-drug-and-alcohol-clearinghouse
Clearinghouse Website: https://clearinghouse.fmcsa.dot.gov/Register
REGISTRATION NOW OPEN FOR ENROLLMENT (10/3/19)
There is currently much confusion surrounding the Drug and Alcohol Clearinghouse regulation and how it will impact motor carriers and their employees. The issue is unfolding and information is changing regularly. This article is intended to clear up what is known and provide our members with a link to obtain the most current information on the Clearinghouse regulation.
First, the Clearinghouse is an electronic database containing records of violations of drug and alcohol prohibitions in subpart B of Part 382. These violations include positive drug and alcohol tests, refusals, and other violations of drivers required to have a CDL. Information regarding drivers who complete the return-to-duty process will also be recorded.
The Clearinghouse implementation date is January 6, 2020. The Clearinghouse will not contain information of violations that occur prior to that date. It’s important to note that only information regarding drivers’ subject to part 383 and part 382 will be in the database, however motor carriers conducting investigative inquiries under Part 391.23(e) for Non-CDL drivers must query the database during the process, and therefore must register. None of the other requirements contained in Parts 382 or Part 40 have changed.
To get started, motor carriers must register with the Clearinghouse during the fall of 2019 in order to be ready for January 6, 2020. This registration process is now open and available online: https://clearinghouse.fmcsa.dot.gov/
All motor carriers must register with the Clearinghouse, this includes Owner-Operators and Canadian Carriers that operate in the United States. Owner-Operators, however, must also designate their drug testing consortium (C/TPA) as their authorized contact to report violations. Owner-Operators must also meet the obligations of all motor carriers to perform annual inquiries on themselves as they are both the motor carrier and driver. This is done by designating FleetScreen as the C/TPA when you register with the Clearinghouse. Motor carriers will be able to choose a query plan that starts at $1.25 per query or bundled plans depending on expected number of inquiries.
MMTA’s C/TPA (FleetScreen) is ready to meet the obligations of the Clearinghouse regulation and in addition to Owner-Operators, all motor carriers may designate FleetScreen to report to the Clearinghouse on their behalf. This process will require motor carriers to provide certain information to the C/TPA in order for them to meet the reporting requirements on members behalf. More information will come directly from FleetScreen to each of our D&A members in the very near future.
After January 6, 2020 all motor carriers are required to conduct an inquiry at least once per year on all drivers’ subject to D&A Testing. This can be a limited or full inquiry. If the limited inquiry shows that information on the driver exists, the motor carrier must follow up with a full inquiry. If the employer fails to conduct the full inquiry within 24 hours, the employer must not allow the employee to drive. Motor carriers must keep a record of all inquiries for 3 full years, however beginning January 6, 2023 this requirement will be met by keeping an active registration with the Clearinghouse because the Clearinghouse will have 3 years of data at that point in time.
Motor Carriers will be required to report violations of Part 382 (subpart B) by the end of the third business day that they learn of the violation. Others who will report violations include C/TPA’s, MRO’s, and SAP’s. All records of violations contained in the Clearinghouse data will remain for 5 full years, or until the Return-to-Duty process is completed, whichever is later.
Drivers are NOT required to register with the Clearinghouse unless they have violations of Part 382 Subpart B after January 6, 2020 or they are seeking employment with a motor carrier and therefore need to give their consent for a Clearinghouse check. Current drivers with no violations and who are not seeking employment are NOT required to register.
Drivers who wish to obtain their own information from the Clearinghouse must, however, register to do so. Drivers who must give their consent for a full inquiry of the Clearinghouse, must also register in order to do so. This requirement has caused some confusion for motor carriers and drivers, because of the requirement for employers to conduct an inquiry of the Clearinghouse at least once annually, which has led many to believe that all drivers must register. To clarify, employers may conduct a limited inquiry which requires the driver to consent (which occurs in writing but outside the Clearinghouse), but not to register. If the limited inquiry reveals potential violations, motor carriers must perform the full inquiry within 24 hours which does require driver a driver to register. The driver’s consent must be kept in the driver’s DQ file as part of the record keeping process. If drivers do not consent to the limited or full query, they must be removed from driving.
All employees (drivers) who are registered with the Clearinghouse, will receive a notice regarding every inquiry made on them, directly from the Clearinghouse, in the manner they have chosen when they registered with the Clearinghouse. This will either be a letter or email. If the driver is not registered, the Clearinghouse will send a letter to the drivers address listed on their CDL license.
For more information, FMCSA maintains a website that contains information and resources for motor carriers and drivers. There is also a FAQ section which is regularly updated: https://clearinghouse.fmcsa.dot.gov/FAQ
For more information, please feel free to contact Tim or Randy at MMTA.
Here is the full regulation regarding the clearinghouse:
- 382.701 Drug and Alcohol Clearinghouse.
(a) Pre-employment query required. (1) Employers must not employ a driver subject to controlled substances and alcohol testing under this part to perform a safety-sensitive function without first conducting a preemployment query of the Clearinghouse to obtain information about whether the driver has a verified positive, adulterated, or substituted controlled substances test result; has an alcohol confirmation test with a concentration of 0.04 or higher; has refused to submit to a test in violation of § 382.211; or that an employer has reported actual knowledge, as defined at § 382.107, that the driver used alcohol on duty in violation of § 382.205, used alcohol before duty in violation of § 382.207, used alcohol following an accident in violation of § 382.209, or used a controlled substance, in violation of § 382.213.
(2) The employer must conduct a full query under this section, which releases information in the Clearinghouse to an employer and requires that the individual driver give specific consent.
(b) Annual query required. (1) Employers must conduct a query of the Clearinghouse at least once per year for information for all employees’ subject to controlled substance and alcohol testing under this part to determine whether information exists in the Clearinghouse about those employees.
(2) In lieu of a full query, as described in paragraph (a)(2) of this section, an employer may obtain the individual driver’s consent to conduct a limited query to satisfy the annual query requirement in paragraph (b)(1) of this section. The limited query will tell the employer whether there is information about the individual driver in the Clearinghouse, but will not release that information to the employer. The individual driver may give consent to conduct limited queries that is effective for more than one year.
(3) If the limited query shows that information exists in the Clearinghouse about the individual driver, the employer must conduct a full query, in accordance with paragraph (a)(2) of this section, within 24 hours of conducting the limited query. If the employer fails to conduct a full query within 24 hours, the employer must not allow the driver to continue to perform any safety sensitive function until the employer conducts the full query and the results confirm that the driver’s Clearinghouse record contains no prohibitions as defined in paragraph (d) of this section.
(c) Employer notification. If any information described in paragraph (a) of this section is entered into the Clearinghouse about a driver during the 30-day period immediately following an employer conducting a query of that driver’s records, FMCSA will notify the employer.
(d) Prohibition. No employer may allow a driver to perform any safety sensitive function if the results of a Clearinghouse query demonstrate that the driver has a verified positive, adulterated, or substituted controlled substances test result; has an alcohol confirmation test with a concentration of 0.04 or higher; has refused to submit to a test in violation of § 382.211; or that an employer has reported actual knowledge, as defined at § 382.107, that the driver used alcohol on duty in violation of § 382.205, used alcohol before duty in violation of § 382.207, used alcohol following an accident in violation of § 382.209, or used a controlled substance in violation of § 382.213, except where a query of the Clearinghouse demonstrates:
(1) That the driver has successfully completed the SAP evaluation, referral, and education/treatment process set forth in part 40, subpart O, of this title; achieves a negative return-to-duty test result; and completes the follow-up testing plan prescribed by the SAP.
(2) That, if the driver has not completed all follow-up tests as prescribed by the SAP in accordance with § 40.307 of this title and specified in the SAP report required by § 40.311 of this title, the driver has completed the SAP evaluation, referral, and education/treatment process set forth in part 40, subpart O, of this title and achieves a negative return-to-duty test result, and the employer assumes the responsibility for managing the follow-up testing process associated with the testing violation.
(e) Recordkeeping required. Employers must retain for 3 years a record of each query and all information received in response to each query made under this section. As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement.